What Is Probate?

What Is Probate?

Probate is an often misunderstood but frequently heard term in relation to the death of a loved one. Perhaps in completing your estate planning you have been advised to “avoid probate.” But what is probate and why is to be avoided?

Probate is the name of the legal process that takes place after someone dies for the purpose of the following:

  • Proving that a deceased person’s Last Will & Testament is valid, if there is one.
  • Determining and giving notice of the proceedings to the deceased person’s heirs, any beneficiaries named in the Will, and the deceased person’s creditors.
  • Identifying, inventorying and valuing what the deceased person owned when they died.
  • Determining who will receive the deceased person’s property (heirs, beneficiaries, creditors, etc.).
  • Distributing the remaining assets as the Will directs (or to the heirs identified by state statutes if no Will exists).

The process itself involves filing documents in the local probate court to have the Will admitted and to request that a Personal Representative (sometimes called, Executor) be appointed. The Personal Representative is thereafter required to continue to provide information to the Court and the other interested parties, until the assets and expenses are fully accounted for, and then will ultimately need to obtain approval to distribute the assets to those who are entitled.

Clients often want to avoid this process because it can take a great deal of time and requires legal paperwork and potential court appearances. It is often misunderstood that having a Will is necessary to avoid probate. There are numerous ways to avoid probate, but preparing a Will is not one of them. Whether or not probate is needed will be driven by the value and type of assets owned by the deceased person. An estate planning attorney can discuss the ways to avoid probate and what might be most suitable in your situation.

 

How to Address Family Conflicts Concerning Caregiving for Aging Parents

How to Address Family Conflicts Concerning Caregiving for Aging Parents

Having adult children provide care and support to an aging or ill parent can be very helpful, but in some cases, can be a cause of stress and family conflict.  Caregiving can bring families closer as they provide mutual support, but in some situations, the stress and pressure of caregiving leads to strained relationships.  This strain may be caused by old patterns of family dynamics involving unresolved past wounds or childhood rivalry or, in some cases, because one or more children are unable to accept the reality of the parent’s illness and eventual death.

Often, conflict is caused by an unequal division of caregiving duties. A parent will typically name one child as agent to make health care and financial decisions in the event of incapacity by completing health care and financial powers of attorney.  The parent will usually choose the person they believe to be the most responsible, the most available or the closest in proximity.  Regardless of the reason, choosing one sibling over another sometimes leads to the caregiving child feeling overburdened with shouldering all of the caregiving duties while the other siblings feel resentful, left out and sometimes suspicious of the caregiving child’s actions.  These feelings often lead to individuals seeking the advice of an elder law attorney regarding the designation of one of the children as agent in a power of attorney. The advice that is most typically sought includes: the validity of the Power of Attorney, agent decision making, financial feuds and the mistreatment of the parent(s).

Questioning the Validity of the Power of Attorney.

Since a person must be competent in order to appoint an agent under a power of attorney, accusations are often made that the parent did not understand the documents or was unduly influenced to sign a power of attorney.  If the parent truly was not competent, Adult Protective Services can step in or the power of attorney can be invalidated.   However, if the accusations are more related to the dissention between family members, the result can often entail an investigation into the agent’s actions that ultimately only results in more family tension and unnecessary legal costs on both sides.

Agent Decision Making.

If siblings do not trust the child who is named as agent, it can cause ongoing questioning of every detail related to the agent’s decisions.  Sometimes, siblings challenge legitimate decisions made by the agent child because they are not as informed or do not understand, which results in continuing resentment and exhaustion on the part of the caregiver.  If an agent is actually making questionable decisions, Wis. Stat. s. 244.16 provides for the actions of a financial agent to be reviewed by the court and Wis. Stat. s. 155.60(4) provides for the actions of the health care agent to be reviewed by the court.

Financial Feuds. 

Finances are a huge source of dissention between family members.  Using a parent’s funds to provide for long-term care will likely reduce potential inheritance, leading to discord between siblings who are not supportive of the type of care being provided.  Also, a caregiving child will sometimes request compensation for caregiving services.  Although such payments are allowed by law, the caregiver’s siblings might object to such payments.   Potential heirs can bring a legal action to review the financial conduct of an agent who has acted illegally or unethically, or petition the court for guardianship to allow for court oversight of the actions of the person in charge.

Abuse, Neglect and Financial Exploitation.

In some cases, the caregiver may be accused of elder abuse, neglect or exploiting the finances of the parent.  These concerns can be reported to Adult Protective Services.  If necessary, a concerned family member can obtain an injunction under Wis. Stat. s. 813.123, to restrain the caregiver from further abuse or financial exploitation.

While an elder law attorney can help with legal remedies for agents who are abusive or exploitative, in most cases the emotional issues are better addressed by opening the lines of communication on both sides.  The following are potential actions that the caregiver and siblings can respectively take to open the lines of communication.

For the caregiver

  • Communicate with family members. Even if you do not all get along, let everyone know what is happening with their parent, both personally and financially.
  • Initiate family meetings, even if everyone will not participate. Discuss the current health and financial status and the next steps.
  • Make a list and prioritize the types of services and support that the parent needs now and may need in the future.
  • Identify what support can be provided by the caregiver, other family members or outside services.
  • Ask for help, and delegate appropriate responsibility to willing family members.
  • Remember that as caregiver, you may end up carrying a heavier load than your siblings and some may not help at all. Having more responsibility may not feel “fair,” but the more important issue is to make sure your parent is receiving appropriate care.

For the siblings of the caregiver

  • Accept that the caregiver child has likely been chosen by the parent because of the trust your parent had in him or her, and not because your parent did not want you to act.
  • Attend family meetings and ask questions about status, next steps and services needed.
  • Be clear about what help, if any, you are willing and able to provide so that the caregiver’s expectations of you are appropriate. Caregiving can be exhausting and emotionally draining.  If you cannot take on specific responsibilities, offer to be a sounding board or a listening ear when the caregiver needs to vent.
  • Consider using outside sources to work through family issues such as mediators, counselors or social workers. A third party can be valuable in providing perspective without taking sides.

Since everyone’s situation is different, there is no solution that will work for every family in terms of dealing with caregiving and family conflict.  Open and honest communication, focused on the needs of the parent, however, can eliminate some of the tension and hard feelings, resulting in better help for the parent and better help for each other.

 

World Elder Abuse Awareness Day – June 15th

World Elder Abuse Awareness Day – June 15th

World Elder Abuse Awareness Day (WEAAD) is June 15th. WEAAD is observed the same date each year and was launched in 2006 by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations. Its purpose is to provide an opportunity for communities around the world to promote a better understanding of elder mistreatment by raising awareness of the cultural, social, economic and demographic factors that drive and influence elder abuse, neglect and exploitation. (American Society of Aging)

As many as 1 in 10 older Americans are abused or neglected each year and only 1 in 14 cases of elder abuse ever comes to the attention of authorities. Older Americans are vital, contributing members of our society and their abuse or neglect diminishes all of us. WEAAD reminds us that, as in a just society, all of us have a critical role to play to focus attention on elder justice. (Administration for Community Living)

Experts have reported that knowledge about elder abuse lags as much as two decades behind the fields of child abuse and domestic violence. The need for more research is urgent and it is an area that calls out for a coordinated, systematic approach that includes policy-makers, researchers and funders.  (National Center on Elder Abuse citing the Elder Justice Roadmap)

Each year, an estimated 5 million older persons are abused, neglected and exploited. Older adults throughout the United States lose an estimated $2.6 billion or more annually due to elder financial abuse and exploitation, funds that they desperately need to pay for basics such as housing, food and medical care. And it is estimated that only about one in five of those crimes are ever reported. (American Society of Aging)

Financial exploitation causes large economic losses for businesses, families, elders, and government programs, and increases reliance on federal health care programs such as Medicaid.  Research indicates that those with cognitive incapacities suffer 100% greater economic losses than those without such incapacities.   (National Center on Elder Abuse citing The 2011 Utah Economic Cost of Elder Financial Exploitation and Broken Trust: Elders, Family & Finances)

Not only are older people heavily targeted by scam artists, but surprising data suggest that, as we get older, we become more vulnerable to fraud in so many of its forms.  There is neuroscience and psychological data to suggest our ability to detect risky situations may decline. Or, we may become prone to seeing the upside of a risky endeavor and dismiss the downside. Others may lose the ability to push back on a high-pressure predator. Safeguards against financial fraud take the shape of a state-by-state patchwork and, too often, once the money is gone, it is gone for good. Therefore, many advocates are fighting for better defenses. (Marketplace – Age of Fraud: Are Seniors More Vulnerable to Financial Scams)

If you have questions regarding elder abuse or need assistance, in addition to reporting to your local Adult Protective Service agency, an attorney can also assist you in taking legal action.

Local Resources

Portage County Adult Protective Services

Portage County Aging & Disability Resource Center

Portage County Department of Health and Human Service

Wisconsin Elder Adults-At-Risk Hotlines

 

National Healthcare Decisions Day – April 16, 2019

National Healthcare Decisions Day – April 16, 2019

National Healthcare Decisions Day was founded in 2008 to inspire, educate and empower the public and providers about the importance of advance care planning and encourage individuals to express their wishes regarding their healthcare and end of life decisions. Advance care planning is crucial to ensure that you are able to receive the type of medical care you want if you are unable to speak for yourself due to illness or injury.

A 2018 survey completed by The Conversation Project (a public engagement initiative offering resources to begin communications with loved ones about advanced directives) found that while 92% of Americans say it’s important to discuss their wishes for end-of-life care, only 32% have actually had such a conversation.

In recognition of NHDD , the Wisconsin State Bar is offering a free publication from April 3–19, called A Gift to Your Family: Planning Ahead for Future Health Needs, as a guide to end-of-life decisions, Health Care Powers of Attorney, Living Wills, Declarations to Physicians and Organ Donation.

Contact us for more information regarding the legal documents that are necessary to insure that your loved ones can act on your wishes and make the best decisions possible.

 

We believe that the place for this to begin is at the kitchen table—not in the intensive care unit—with the people we love, before it’s too late.
The Conversation Project

Why Won’t the Bank Honor My Power of Attorney?

Why Won’t the Bank Honor My Power of Attorney?

When you have been appointed as an agent under a Durable General (Financial) Power of Attorney, you presume that financial institutions will honor the document appointing you and provide you with access to funds and financial information on behalf of the person who appointed you as agent. It can be a frustrating experience to be told that you cannot access accounts or get the information you are seeking. To resolve the problem, it is important to ask for a clear explanation for why the document is not acceptable. There are some common reasons for a bank, financial institution or other agency to refuse to acknowledge the power of attorney.

1.) The Power of Attorney Is Not Durable
Read the document carefully. For a power of attorney to be effective after incapacity, it must contain specific language indicating that the power of attorney is “durable,” meaning it continues to be effective after the principal becomes incapacitated. Otherwise, it is only effective while the principal is still of sound mind. Since most individuals want the power of attorney to be effective in the event they are no longer able to handle their financial affairs, they should be sure that the power of attorney contains the appropriate durable language when it is drafted. If there is no such language, the agent has no authority and a bank will not honor the power of attorney. If the principal is already incapacitated, they will not be able to execute a new power of attorney and a guardianship may be necessary to access accounts and financial information.

2.) The Power of Attorney Has Not Been Activated
Most Durable General (Financial) Powers of Attorney contain language about how they become effective, again it is important to read the document very carefully before you need to use it, so you can determine what must occur for it to become activated. Some powers of attorney contain language indicating they are “springing,” meaning they only become effective upon the incapacitation of the principal. Some indicate that the document becomes effective after the principal signs a written statement indicating it is effective and they want the agent to act for them. Other powers of attorney are effective immediately the day they are executed, meaning the principal does not have to be incapacitated for the agent to use the document to act on their behalf.

3.) You Have Not Provided Required Documentation
If the power of attorney requires incapacitation before it is effective, you must provide documentation to the bank or financial institution showing that incapacitation has occurred. You may need medical records or a statement from a physician; or if the document requires it, the signature of two physicians who have examined the principal and determined that he or she is unable to manage their affairs due to mental incapacity. If the document requires a written statement from the principal, you must present that document, along with the power of attorney. If you are a secondary agent, named to act in the event the primary agent is unwilling to act or is unable to act due to death or incapacitation, you must provide documentation as to why the first named agent is not acting (e.g. a written resignation, death certificate or certificate showing the first agent has become incapacitated).

4.) The POA Is “Stale”
The notion of “staleness” implies that if a power of attorney was executed a number of years ago, then there is a chance the principal may have revoked the power or has executed a new one. In Wisconsin, a person may not refuse a power of attorney based on the date it was executed; however, a person may ask for a certification of the power of attorney which provides that the principal is still alive, has not revoked or amended the power of attorney and that the contingency requiring it to be effective has occurred.

5.) Handling Power of Attorney Issues with Banks
Keep in mind that banks and other financial institutions are often trying to prevent fraudulent transactions, giving access to an unauthorized person or granting access to an authorized person under the wrong circumstances. They want to protect their customers and can be held liable for granting unauthorized access. While this can be frustrating for the agent, try to remember that you would want the utmost caution taken if someone were trying to access your personal information or accounts.

Remember, if you have communicated clearly and have provided all documentation without successfully accessing the needed information, your attorney may be helpful in providing the bank or financial institution with the legal authority necessary to access the information.

 

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